Phineas Mariyapera v Eddies Pfugari Properties (Pvt) Ltd and Chegutu Municipality

### Preamble
1
HH 203-13
HC 4700/13
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PHINEAS MARIYAPERA

versus

EDDIES PFUGARI PROPERTIES (PVT) LTD

And

CHEGUTU MUNICIPALITY

HIGH COURT OF ZIMBABWE

MATHONSI J

HARARE, 20 and 26 June 2013

V.Muza, for the applicant

G.Gapu, for the 1st respondent

C.Warara, for the 2nd respondent

URGENT CHAMBER APPLICATION

MATHONSI J:  The applicant has approached this court on a certificate of urgency seeking the following relief:

“INTERIM RELIEF SOUGHT

Pending the final determination of this matter first respondent be and is hereby barred from occupying and effecting any improvements and/or constructing any structures on a certain piece of land called stand number 1778 Chegutu township measuring 14 4481 hectares.

FINAL ORDER SOUGHT

Second respondent be and is hereby barred from selling or disposing in any way a certain piece of land called stand number 1778 Chegutu Township measuring 14 4481 hectares to any other person.

The agreement of sale between applicant and the second respondent be and is hereby confirmed.

The costs of this application shall be in the cause.”

This draft order is at variance with Form 29C of the High Court Rules and is an invention of the applicant’s legal practitioner.  This is undesirable; Mhashu v Asani & Ors HH72/13.

In his founding affidavit the applicant alleged that he is the owner of stand 1778 Chegutu Township, Chegutu he having purchased the property from the second respondent sometime in 2003 and that he has been in peaceful and undisturbed possession from that time until the last week of May 2013 when such possession was disturbed by the first respondent.  He alleged that the first respondent invaded the property and started constructing a service station.  On 2 June 2013 the first respondent moved graders and other earthmoving equipment and started clearing the area for construction purposes.

The applicant further alleged that the first respondent had previously occupied the property by virtue of a lease agreement he had with the second respondent but it was recovered from the first respondent before being sold to the applicant.

Both respondents have opposed the application and submitted voluminous documents on how the application is without merit, how the applicant possesses no right over the property or how if any such prima facie right exists such is cast in serious doubt as to disentitle the applicant to a temporary interdict and more importantly how the matter is not urgent at all.

The utmost good faith must be displayed by litigants approaching this court in this manner and all material facts must be disclosed to the court to enable it to make an informed decision.  The applicant is obliged to disclose all facts relevant to the matter which have the effect of influencing the outcome of the application: N & R Agencies (Pvt) Ltd & Anor v Ndlovu & Anor HB 198/11 at p3; Shungu Engeneering (Pvt) Ltd v Songondimando & Ors HH99/12;

I am in agreement with the pronouncement of NDOU J in Graspeak Investments (Pvt) Ltd v Delta Corporation (Pvt) Ltd & Anor 2001 (2) ZLR 551 (H) 555 A-D where the learned judge stated:

“An urgent application is an exception to the general rule and as such the applicant is expected to disclose fully and fairly all material facts known to him or her.  Legal practitioners should always bear this in mind before certifying that the matter is urgent. The objective of requiring a certificate of urgency by a legal practitioner is to ensure that, as an officer of the court, the legal practitioner will only use this route for true urgent applications.  This court has a discretion, even if the non-disclosure is material, to grant or dismiss the application: see Venter v van Graan 1929 TPD435 --------.  The courts should, in my view, discourage urgent applications, whether exparte or not, which are characterised by material non-disclosures, mala fides, or dishonesty. Depending on the circumstances of the case, the court may make adverse or punitive orders as a seal of disapproval of mala fides or dishonesty on the part of litigants.  In this case, the applicant attempted to mislead the court by not only withholding information but by also making untruthful statements in the founding affidavit.  The applicants non-disclosure relates to the question of urgency.”

In his founding affidavit the applicant did not disclose that this is a dispute that has been raging on since he purported to purchase the property in July 2003 and that the first respondent has always been in occupation of the property even before the applicant expressed an interest in it.  He did not take the court to his confidence regarding the fact that the first respondent has had his building material at the site and attempted to commence construction work at the time that the applicant was the Deputy Mayor of the second respondent and that he had in fact used his influence to stop that construction.

More importantly, the applicant was the Deputy Mayor when he purported to acquire the property, a fact he did not even disclose in his founding affidavit.  He also withheld the fact that a massive investigation was conducted against him on the manner he acquired properties from the second respondent, including stand 1778 Chegutu Township and that the investigation resulted in several reports being compiled on the impropriety of that acquisition.  In particular, the report of Town Clerk Mandigo compiled in September 2006 addressed to council, including the applicant, had concluded that the applicant had corruptly purported to acquire the property.  It made the following recommendation;

“The onus is on Alderman Mariyapera (the applicant herein) to unequivocally prove payment for the stand 1778 as stated on item 6.5 above to sustain his objective.  Furthermore, the voiding and reinstatement of the authentically transacted cheque figure, should be proven in terms of Financial Accounting standards and procedures. Otherwise up until the said proof is produced, the land remains Council property.” (The underlining is mine).

Although aware that the second respondent did not recognise his purported purchase of the property, the applicant withheld this information.  Instead he claimed in his founding affidavit that the first respondent recently purchased the property and only moved in at the end of May or beginning of June 2013.  This, despite the fact that it is common cause that the first respondent has always maintained a presence at the stand.

It is therefore difficult to understand why the applicant did not do anything to assert any rights he perceived to have from 2006 when he received the council report stripping him of the property or from 2003 when he used illegal means to ward off the first respondent.  He waited, as submitted by Mr Warara for the second respondent, until he was awakened by the sound of graders and earthmovers, and then rushed to court seeking relief.

Now, urgency which stems from a deliberate in action until the day of reckoning is nigh is not the urgency contemplated by the rules.  It is self created urgency. The applicant failed to disclose the lack of urgency in this matter, he withheld crucial information relevant to the resolution of the matter and attempted to pull the wool over the court’s eye by alleging possession he never had.

I therefore conclude that the application is not urgent.  The conduct of the applicant in failing to disclose material facts is reprehensible and calls for punitive costs as a seal of the court’s disapproval.

Accordingly the application is dismissed with costs on the scale of legal practitioner and client.

Muza & Nyapadi, applicant’s Legal Practitioners

Messrs Scanlen & Holderness, 1st respondent’s Legal Practitioners

Messrs Warara & Associates, 2nd respondent’s Legal Practitioners